Michigan smoking ban fight to continue

Foes to the state smoking ban vow to continue the fight to reverse or curtail the law despite losing a court ruling Friday.

The state appeals court shot down a former Warren bar owner’s legal challenge to the state smoking ban due to the bar closing. The ruling did not address the merits of the appeal’s claim that the law is unconstitutional.

“This argument about the smoking ban in terms of its terrible impact on blue-collar bars is not over,” said attorney Ted Andris. “There will be additional litigation and other possibilities that we may do.”

Andris represented Boyd Cottrell in his appeal of a Macomb County judge’s ruling that backed the ban, the “smoke free air law” that prohibits smoking in public places, including bars, restaurants and businesses. It was passed to protect people from secondhand smoke.

Andris said he expects to appeal Friday’s decision to the state Supreme Court and/or file a federal lawsuit. He said he is unsure whether Cottrell will be involved. Other bar owners are interested in pursuing legal action, he said.

“There are many mom and pop businesses being tremendously damaged or put out of business completely,” Andris said.

Also interested are representatives from nonprofit organizations such as veterans groups that can’t allow smoking in clubhouses, he said.

In addition, the Michigan Licensed Beverage Association is continuing to fight the ban and hopes to revise the law to allow smoke rooms and patios, MLBA Executive Director Scott Ellis said. Ellis said his organization is working with state Sen. Rick Jones, R-Grand Ledge, to revise the law to allow smoking in enclosed, separate rooms and outdoor patios of eateries. A bill to that effect was introduced last year.

“We believe that, bottom line, it’s a choice,” Ellis said.

The MLBA would like to see the law reversed and supports Cottrell’s effort but realizes that may be unrealistic due to the ban’s public support.

He noted that with a pro-business, Republican governor and GOP legislators, changes may be possible.

The MLBA recently published a counter-study to a pro-ban study commissioned by the state Department of Community Health, “The Economic Impact of Michigan’s Dr. Ron Davis Smoke Free Air Law,” by the University of Michigan Institute for Social Research.

The study by professor Helen Levy, released Sept. 17, concluded the ban, which started May 1, 2010, has not significantly impacted the state’s economy, although there were winners and losers.

“It is important to note that while some establishments saw sales fluctuations after the passage of the Dr. Ron Davis Smoke-Free Air Law, bars and restaurants as a whole were not adversely affected,” James K. Haveman, director of the Michigan Department of Community Health said in a statement.

But the MLBA says the study was flawed.

“The study did not include liquor sales, which is a huge misrepresentation of the industry,” Ellis said. “On-premise sales are down 3.2 percent, but off-premise sales are up 3.2 percent; meaning people are buying their alcohol and going home where they can smoke, instead of being in a social setting of bars and taverns.”

In the state Court of Appeals ruling, Cottrell’s appeal was dismissed because it is moot; he closed Sporty O’Toole’s Bar & Grill on Mound Road.

“It is impossible for us to grant the relief requested by the defendant,” said the panel of Kathleen Jansen, a former Macomb judge, Stephen L. Borrello and Jane M. Beckering. “Defendant is now out of business.” Because Cottrell doesn’t plan to reopen somewhere else, “The smoking ban will not continue to affect him in a collateral way,” the judges say.

Cottrell claimed his revenues dropped by 20 percent after the ban.

On top of that, someone broke into his safe at the bar last November and stole $4,200. He told The Macomb Daily at the time that the theft could put him out of business “by next week.”

He closed in January, Andris said.

His appeal claimed the smoking ban violates the equal protection clause of the state constitution and U.S. Constitution because it gives preferential treatment to the Detroit casinos, which were exempted from the legislation, the state Clean Indoor Act.

Sporty’s also offered gambling through Keno and lottery ticket sales.

Cottrell appealed a decision by Judge Edward Servitto of Macomb County Circuit Court, who said the issue was not within his jurisdiction but expressed concern about the law, saying it contained “confusing language.”

The Macomb County Health Department issued two citations against the bar for allowing smoking. Cottrell paid the first $100 fine. Servitto nixed the second $500 fine and license suspension by county health officials.